MONROVIA BREWERIES, INC., represented by its manager, RUDOLF J. WALSER, Appellant, v. P. C. BROWN and RICHARD T. TOR, executors, cum testamento annexo, of the last will and testament of JEDA TOR, Appellees. 2. P. C. BROWN and RICHARD T. TOR, executors, cum testamento annexo, of the last will and testament of JEDA TOR, Appellant, v. MONROVIA BREWERIES, INC., represented by its manager, RUDOLF J. WALSER, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued March 17, 1969. Decided June 13, 1969. 1. An action for damages is the proper suit to be brought for breach of a lease agreement when the purpose of the action is the recovery of back rent ; the remedy is not in equity for cancellation of the lease. 2. A money judgment against the nominee of a corporation named as defendant, is invalid against that person, when he has not been personally made a party to the action. The one appeal considered in this opinion, first captioned in the title, for the other appeal hinged upon it, arose from a suit for cancellation of a lease agreement predicated upon nonpayment of rent by the lessee. From the judgment entered, the defendant in the suit appealed. Judgment reversed, companion appeal not considered by the Supreme Court, a decision having been rendered unnecessary by this opinion. James G. Bull and James Dossen Richards for appellant. M. M. Perry for appellees. MR. JUSTICE WARDSWORTH delivered the opinion of the court. 367 368 LIBERIAN LAW REPORTS Growing out of the same case are two appeals, based upon two approved bills of exceptions, which is rare. A careful search through the records before us reveals that the parties involved in these appeals are before us, as was said, on two separate bills of exceptions, which under normal circumstances would be treated by preparing two opinions, but because there is a certain basic underlying legal principle controlling the suit in the lower court, we have deemed it expedient to merge the two appeals in one opinion. The record shows that P. C. Brown, et al., executors testamento annexo of the last will and testament of Jeda Tor, instituted a suit in equity in the Circuit Court, Sixth Judicial Circuit, Montserrado County, against Daniel K. Tor, deposed executor of the last will and testament of Jeda Tor, and the Monrovia Breweries Incorporated, of Monrovia, Liberia, represented by its commercial manager, Rudolf J. Walser, for the cancellation of lease agreements, allegedly executed by and between petitioners and respondents herein because of certain fraudulent acts surrounding the transaction, as set out in petitioners’ complaint. The writ of summons was served, proof of service filed, and respondents filed their notice of appearance. The pleadings progressed as far as the surrejoinder. The issues of law were disposed of on September 6, 1965, and the case was ruled to trial on the complaint in its entirety. The final decree was rendered on December 3, 1965, to which Monrovia Breweries, Inc., et. al., and P. C. Brown, et al., noted exceptions and prayed an appeal to this Court. Monrovia Breweries, Inc., represented by its manager, Rudolf J. Walser, filed its approved bill of exceptions, containing seven counts. In count one they contend that the trial court committed error in denying their defense, contained in counts seven and eighteen of the answer, charging that cancellation of a lease is not the proper action when what is sought is back rent. LIBERIAN LAW REPORTS 369 Count four of the complaint reads : “That there are sundry lease agreements existing between co-respondent Monrovia Breweries, Incorporated and the estate, which have all been violated by the said company; that is to say, the said company has failed to pay the rentals provided in the said agreements, as will more fully appear from an inspection of the attached copies of said agreements of lease marked exhibits `B,”C,”D,’ and ‘E,’ to form part of this petition.” The question then arises as to the tenability of law of this allegation. In Tubman v. Westphal, i L.L.R. 367 ( I9oo) , it was held that an action for the violation of contract is the proper action to bring against a tenant who has made default in the payment of rent; ejectment will not lie and if brought may be enjoined. Further, it is provided by statute : “Redress for the breach of a contract shall be obtained through an action in which the plaintiff seeks to obtain from the defendant a sum of money as damages or compensation for the injury he has sustained by reason of the defendant’s failure to perform as required under some contract which he or some person under whom he claims or whom he represents is alleged to have entered. Such an action is referred to briefly as an action of contract or an action for damages.” Civil Procedure Law, 1956 Code 6:162. In support of the foregoing, we have: “A contract may give a party the right to demand its performance according to its terms, but there is no delicti and no cause of action until the other party refuses or neglects to perform some duty required of him by the terms of the contract. No cause of action on a contract can arise before the contract is broken. As a general rule, no cause of action arises until the time for performance has expired. 370 LIBERIAN LAW REPORTS “Where the contract is thus broken, there is a remedy against the party breaking it for such breach of contract. A cause of action for damages, at least for nominal damages, arises upon the breach of a contract. Nominal damages are recoverable where there is no proof of actual damage. The obligation to pay damages arising from an unexcused nonperformance of a contract is implied by law.” 12 AM. JUR., Contracts, � 388. Judge Bouvier, speaking of breach of contract, says: “The foundation of the common law of contracts may be said to be the giving of damages for the breach of contracts. When the thing to be done is the payment of money, damages paid in money are entirely adequate. . . .” i BOUVIER’S L.D. 664. And moreover, in count seven of this appellant’s bill of exceptions, it is alleged that the manager of the Brewery was ordered to pay $12,800.00, when the suit was against that company and not personally against its manager. In Karpeh v. Manning, [1936] LRSC 14; 5 L.L.R. 162 (1936), it was held that no judgment can legally be rendered against one who has not been summoned or who, having knowledge that process has been ordered issued against him, has not voluntarily appeared and submitted to the jurisdiction of the court. Therefore, the judgment returned against the manager, Rudolf J. Walser, is clearly improper. And it is plain that the petitioners chose the wrong form of action, that is to say, instead of a suit in equity for cancellation of lease agreements, they should have instituted an action of damages for breach of contract. Therefore, the judgment against these appellants is reversed, and the appeal perfected by P. C. Brown, et al., is hereby given no consideration, not being able to stand independently of the basic suit which by this opinion is declared without legal foundation. Appellees in Monrovia Breweries v. P. C. Brown, et al., are hereby ordered